2014

2 July 2014: It’s good to find common ground

It’s good to find common ground

Three rulings made last week a good one for civil liberties and, therefore, for civil libertarians, despite one ruling causing consternation for some women and their health providers.  There is reason the First Amendment being the first in the hierarchy: Without it, all the rest crumble.

First, a unanimous Supreme Court ruled a person’s smart phone, tablet, and laptop deserve constitutional protection with regard to privacy.  In his opinion statement, Chief Justice John G. Roberts Jr. says they have become “a pervasive and insistent part of daily life.”

Indeed, such as it is with firearms, technology is not what it was in the 18th century.  As Orin S. Kerr, law professor at George Washington University, tells the NY Times, “This is a bold opinion.  It is the first computer-search case, and it says we are in a new digital age. You can’t apply the old rules anymore.”  (Second Amendment absolutists, please take note.)

Roberts writes, “The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the founders fought,” particularly since these devices can contain “a digital record of nearly every aspect of [Americans’] lives — from the mundane to the intimate.”

The court recognizes, civil liberties issues notwithstanding, law enforcement needs tools occasionally to deal with situations requiring looking at a person’s data in a “now or never” or “exigent circumstances.”  The answer’s simple, he says: “Get a warrant,” pointing out that same technology in turn can be of assistance in that a warrant can be gotten within 15 minutes.

Second, the 10th Circuit Federal Appeals Court has ruled Utah’s, and by extension Colorado’s and the other states in its jurisdiction, prohibitions on same-sex marriage unconstitutional.  Judges across the country have been consistently throwing out state bans, but this ruling is especially significant in that it has come from the appeals level.

Professor Carl Tobias, judicial appointment expert and professor at the University of Richmond’s School of Law, says that since the ruling comes from a three-judge panel in a higher court, thus, having more authority than a district court ruling, other appeals court will be influenced by the court’s reasoning.

“Strict scrutiny” is the key in this case, and the judges found that none of the state’s arguments, which relied on a link between marriage and procreation, could withstand that level of scrutiny, according to Tobias.  After all, opposite-sex couples who do not or cannot procreate are still allowed to marry.

Next step: Supreme Court where Justice Anthony Kennedy will likely be the final arbiter with Antonin Scalia and his boys on the right upholding the banner of religious zealotry and the four liberal justices understanding and acknowledging the constitutional precept of “equal protection under the law.”

Finally, to the dismay of some abortion-rights activists, the Court also ruled Massachusetts’s 35-foot buffer zone for women accessing health clinics to shield them from harassment, both belligerent and “benign,” goes beyond the pale.  A more reasonable space by default is Colorado’s eight feet, something the Court has already ruled constitutional.

My conflict is based upon two powerful inclinations: civil liberties, thus free speech, v. women and their medical providers not needing to endure gauntlets when going for procedures of the deepest personal nature.  One can wish protestors would behave Christian-like and allow women to take steps they believe are in their best interest, but that’s not likely.  Zealotry knows no bounds.  So it goes.

Nevertheless, even crazies enjoy First Amendment rights and as a card-carrying member of the ACLU, I’ll defend their right to say and do their thing as long it is non-threatening and doesn’t set up roadblocks for others who likewise are exercising their constitutional rights.

What I find fulfilling in the three outcomes is both left and right, Democrat and Republican have come together in some measure in supportive roles.  With technology, from Antonin Scalia to Ruth Bader Ginsberg, the SCOTUS resoundingly affirmed the right to privacy and the need for law enforcement to follow the law by getting a warrant.

In the same-sex marriage ruling, two judges, Judge Carlos F. Lucero appointed by Bill Clinton, and Jerome Holmes appointed by George W. Bush, concurred.  Paul J. Kelly Jr., appointed by President George H.W. Bush, dissented.

Finally, the “buffer-zone” ruling is arguably a reasonable balance between two conflicting rights.

Finding common ground: That’s always a good thing.

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